1     
WORK ENVIRONMENT AND GRIEVANCE PROCEDURE

2     
AMENDMENTS

3     
2018 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: LaVar Christensen

6     
Senate Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill clarifies and amends grievance procedures for state employees in the executive
11     branch.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     incorporates in statute the state's policy and commitment to provide and maintain a
16     work environment free of abusive conduct;
17          ▸     requires annual training and cumulative reports to a legislative committee regarding
18     abusive conduct and grievances;
19          ▸     includes abusive conduct and other actions in the list of issues and conditions for
20     which an employee may file a grievance and complaint;
21          ▸     prohibits retaliatory action against an employee who represents or advocates for an
22     employee at any level of the grievance procedure as provided in statute;
23          ▸     amends deadlines for submitting certain grievances;
24          ▸     allows an employee to make a grievance after voluntary termination of employment
25     in certain circumstances;
26          ▸     allows an employee to submit a grievance to higher steps in the grievance process if
27     the grievance relates to a supervisor or administrator to whom the employee would
28     otherwise submit a grievance;
29          ▸     provides for an administrative appeal to the administrator of the Career Service
30     Review Office and for certain judicial review of a decision of the administrator of
31     the office; and
32          ▸     makes technical and conforming changes.
33     Money Appropriated in this Bill:
34          None
35     Other Special Clauses:
36          None
37     Utah Code Sections Affected:
38     AMENDS:
39          67-19-44, as enacted by Laws of Utah 2015, Chapter 211
40          67-19a-101, as last amended by Laws of Utah 2013, Chapter 427
41          67-19a-202, as last amended by Laws of Utah 2015, Chapter 258
42          67-19a-301, as last amended by Laws of Utah 2013, Chapter 427
43          67-19a-303, as last amended by Laws of Utah 2013, Chapter 427
44          67-19a-401, as last amended by Laws of Utah 2010, Chapter 249
45          67-19a-402, as last amended by Laws of Utah 2010, Chapter 249
46          67-19a-402.5, as last amended by Laws of Utah 2015, Chapter 258
47          67-19a-406, as last amended by Laws of Utah 2013, Chapter 109
48          67-21-3.5, as enacted by Laws of Utah 2013, Chapter 427 and last amended by
49     Coordination Clause, Laws of Utah 2013, Chapter 427
50     ENACTS:
51          67-19a-102, Utah Code Annotated 1953
52     REPEALS AND REENACTS:
53          67-19a-302, as last amended by Laws of Utah 2013, Chapter 427
54     

55     Be it enacted by the Legislature of the state of Utah:
56          Section 1. Section 67-19-44 is amended to read:
57          67-19-44. Abusive conduct.
58          (1) As used in this section:
59          (a) (i) "Abusive conduct" means [verbal, nonverbal, or physical conduct of an
60     employee to another employee that, based on its] conduct or a course of conduct that, through
61     acts, omissions, or both, and based on the conduct's pattern, duration, direct or indirect effect,
62     severity, nature, [and] or frequency of occurrence, constitutes what a reasonable person [would
63     determine:] would consider to be unfair, intolerable, and contrary to the state's policy of
64     providing and maintaining a work environment free from abusive conduct, as provided in
65     Section 67-19a-202.
66          (ii) "Abusive conduct" includes:
67          (A) [is intended to cause] repeated verbal abuse such as the use of derogatory remarks,
68     insults, or epithets;
69          (B) verbal, nonverbal, or physical conduct that causes intimidation, humiliation, or
70     unwarranted distress;
71          (C) the sabotage or undermining of work performance;
72          [(B)] (D) conduct that results in substantial physical, emotional, or psychological harm
73     [as a result of intimidation, humiliation, or unwarranted distress; or];
74          [(C) exploits an]
75          (E) conduct that adds to the employee's known physical or psychological disability[.];
76          (F) abuse of authority; or
77          (G) other unfair or wrongful employment practices as recognized and provided in Title
78     67, Chapter 19a, Grievance Procedures.
79          [(ii) A single act does not constitute abusive conduct, unless it is an especially severe
80     and egregious act that meets the standard under Subsection (1)(a)(i)(A), (B), or (C).]
81          (b) "Employee" means an employee of a state executive branch agency.
82          (c) "Physical harm" means the impairment of a person's physical health or bodily
83     integrity, as established by competent evidence.
84          (d) "Psychological harm" means the impairment of a person's mental health, as
85     established by competent evidence.
86          (2) By July 1, [2015] 2019, the department shall [make a] amend the department's rule,
87     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, consistent with
88     the definitions in Subsection (1).
89          (3) (a) [On and after July 1, 2015, the] The department shall provide annual training to
90     educate employees and supervisors about how to prevent abusive workplace conduct.
91          (b) The training shall include information on:
92          (i) what constitutes abusive conduct and the ramifications of abusive conduct;
93          (ii) resources available to employees who are subject to abusive conduct; and
94          (iii) the grievance process.
95          (4) (a) [On and after July 1, 2015, each] Each state agency shall provide professional
96     development training approved by the department to promote:
97          (i) ethical conduct; and
98          (ii) organizational leadership practices based in principles of integrity.
99          (b) A state agency may request assistance from the department in developing training
100     under this Subsection (4).
101          (5) (a) Employees shall participate in the training described in Subsections (3) and (4)
102     [in alternating years] annually.
103          (b) The requirement in Subsection (5)(a) includes full disclosure and notification to all
104     employees at the time of hiring and annually thereafter of the grievance procedures provided in
105     Title 67, Chapter 19a, Grievance Procedures.
106          (6) The department may use money appropriated to the department or access support
107     from outside resources to:
108          (a) develop policies against workplace abusive conduct; and
109          (b) enhance professional development training on topics such as:
110          (i) building trust;
111          (ii) effective motivation;
112          (iii) communication;
113          (iv) conflict resolution;
114          (v) accountability;
115          (vi) coaching;
116          (vii) leadership; or
117          (viii) ethics.
118          (7) This section does not:
119          (a) exempt or relieve a person from a liability, duty, or penalty provided by another
120     federal or state law;
121          (b) create a private right of action;
122          (c) expand or diminish rights or remedies available to a person before July 1, 2015; or
123          (d) expand or diminish grounds for discipline that existed before July 1, 2015.
124          (8) The department shall annually report to the Economic Development and Workforce
125     Services Interim Committee by no later than the November [2015] interim meeting regarding:
126          (a) the implementation of this section;
127          (b) recommendations, if any, to appropriately address and reduce workplace abusive
128     conduct or to change definitions or training required by this section; [and]
129          [(c) if the department finds a change in a definition or training is needed, the
130     department's efforts to work with stakeholders to make recommendations for change.]
131          (c) an annual report of the administration of the total grievances filed and administered
132     by the department and the office for the year since the department made the last report to the
133     committee; and
134          (d) the extent to which the state policy of providing and maintaining a work
135     environment free from abusive conduct, as described in Section 67-19a-102, has been
136     achieved.
137          Section 2. Section 67-19a-101 is amended to read:
138          67-19a-101. Definitions.
139          As used in this chapter:
140          (1) (a) "Abusive conduct" means conduct or a course of conduct that, through acts,
141     omissions, or both, and based on the conduct's pattern, duration, direct or indirect effect,
142     severity, nature, or frequency of occurrence, constitutes what a reasonable person would
143     consider to be unfair, intolerable, and contrary to the state's policy of providing and
144     maintaining a work environment free from abusive conduct.
145          (b) "Abusive conduct" includes:
146          (i) repeated verbal abuse such as the use of derogatory remarks, insults, or epithets;
147          (ii) verbal, nonverbal, or physical conduct that causes intimidation, humiliation, or
148     unwarranted distress;
149          (iii) the sabotage or undermining of work performance;
150          (iv) conduct that results in substantial physical, emotional, or psychological harm;
151          (v) conduct that adds to an employee's known physical or psychological disability;
152          (vi) abuse of authority; or
153          (vii) other unfair or wrongful employment practices as recognized and provided in this
154     chapter.
155          [(1)] (2) "Administrator" means the person appointed under Section 67-19a-201 to
156     head the Career Service Review Office.
157          [(2)] (3) "Career service employee" means a person employed in career service as
158     defined in Section 67-19-3.
159          (4) "Constructive termination" means an employee's voluntary termination of
160     employment after having been subjected to intolerable conditions and, for understandable and
161     appropriate reasons, striving to individually endure and overcome those conditions.
162          (5) "Department" means the Department of Human Resource Management.
163          [(3)] (6) "Employer" means the state of Utah and all supervisory personnel vested with
164     the authority to implement and administer the policies of an agency.
165          (7) "Excusable neglect" means harmless error, mistake, inadvertence, surprise, a failure
166     to discover evidence that, through due diligence, could not have been discovered in time to
167     meet the applicable time period, misrepresentation or misconduct by the employer, or any other
168     reason justifying equitable relief and fairness as full due process requires to satisfy the
169     recognized policy of preventing abusive conduct in the workplace.
170          [(4)] (8) "Grievance" means:
171          (a) a complaint by a career service employee concerning any matter touching upon the
172     relationship between the employee and the employer;
173          (b) any dispute between a career service employee and the employer; [and]
174          (c) a complaint by a reporting employee that a public entity has engaged in retaliatory
175     action against the reporting employee[.]; and
176          (d) a complaint by a reporting employee that a public entity has engaged in abusive
177     conduct.
178          [(5)] (9) "Office" means the Career Service Review Office created under Section
179     67-19a-201.
180          [(6)] (10) "Public entity" [is as] means the same as that term is defined in Section
181     67-21-2.
182          [(7)] (11) "Reporting employee" means an employee of a public entity who alleges that
183     the public entity engaged in retaliatory action against the employee.
184          [(8)] (12) "Retaliatory action" means to do any of the following to an employee in
185     violation of Section 67-21-3:
186          (a) dismiss the employee;
187          (b) reduce the employee's compensation;
188          (c) fail to increase the employee's compensation by an amount that the employee is
189     otherwise entitled to or was promised;
190          (d) fail to promote the employee if the employee would have otherwise been promoted;
191          (e) cause the employee to [resign by subjecting the employee to conditions that a
192     reasonable person would consider intolerable; or] experience conditions that a reasonable
193     person would consider intolerable, including abusive conduct; or
194          (f) threaten to take an action described in Subsections [(8)] (12)(a) through [(e)] (d).
195          [(9)] (13) "Supervisor" means the person:
196          (a) to whom an employee reports; or
197          (b) who assigns and oversees an employee's work.
198          Section 3. Section 67-19a-102 is enacted to read:
199          67-19a-102. Grievance policy and complaint procedure.
200          (1) It is the policy of the state of Utah to provide and maintain a work environment free
201     from abusive conduct.
202          (2) Management shall permit employees who allege abusive conduct or other
203     grievances to file a complaint and engage in a review process free from bias, collusion,
204     intimidation, or retaliation.
205          (3) (a) An aggrieved employee may file a written complaint in accordance with this
206     chapter.
207          (b) A complaint described in Subsection (3)(a) shall be promptly and fairly
208     administered in accordance with this chapter.
209          (4) When an employee files an abusive conduct grievance, the department shall
210     conduct an investigation as necessary to:
211          (a) substantiate all claims and fulfill the department's responsibilities under this
212     chapter; and
213          (b) prevent abusive conduct.
214          Section 4. Section 67-19a-202 is amended to read:
215          67-19a-202. Powers -- Scope of authority.
216          (1) (a) The office shall serve as the final administrative body to review a grievance
217     from a career service employee and an agency of a decision regarding:
218          (i) a dismissal;
219          (ii) a demotion;
220          (iii) a suspension;
221          (iv) a reduction in force;
222          (v) a dispute concerning abandonment of position;
223          (vi) a wage grievance if an employee is not placed within the salary range of the
224     employee's current position;
225          (vii) a violation of a rule adopted under Chapter 19, Utah State Personnel Management
226     Act; [or]
227          (viii) except as provided by Subsection (1)(c)(iii), equitable administration of the
228     following benefits:
229          (A) long-term disability insurance;
230          (B) medical insurance;
231          (C) dental insurance;
232          (D) post-retirement health insurance;
233          (E) post-retirement life insurance;
234          (F) life insurance;
235          (G) defined contribution retirement;
236          (H) defined benefit retirement; and
237          (I) a leave benefit[.];
238          (ix) abusive conduct; or
239          (x) disciplinary action imposed subsequent to an abusive conduct investigation under
240     this chapter.
241          (b) The office shall serve as the final administrative body to review a grievance by a
242     reporting employee alleging retaliatory action.
243          (c) The office may not review or take action on:
244          (i) a personnel matter not listed in Subsection (1)(a) or (b);
245          (ii) a grievance listed in Subsection (1)(a) or (b) that alleges discrimination or
246     retaliation related to a claim of discrimination that is a violation of a state or federal law for
247     which review and action by the office is preempted by state or federal law; or
248          (iii) a grievance related to a claim for which an administrative review process is
249     provided by statute and administered by:
250          (A) the Utah State Retirement Systems under Title 49, Utah State Retirement and
251     Insurance Benefit Act;
252          (B) the Public Employees' Benefit and Insurance Program under Title 49, Chapter 20,
253     Public Employees' Benefit and Insurance Program Act; or
254          (C) the Public Employees' Long-Term Disability Program under Title 49, Chapter 21,
255     Public Employees' Long-Term Disability Act.
256          (2) The time limits established in this chapter supersede the procedural time limits
257     established in Title 63G, Chapter 4, Administrative Procedures Act.
258          Section 5. Section 67-19a-301 is amended to read:
259          67-19a-301. Charges submissible under grievance procedure.
260          (1) This grievance procedure may only be used by career service employees who are
261     not:
262          (a) public applicants for a position with the state's work force;
263          (b) public employees of the state's political subdivisions;
264          (c) public employees covered by other grievance procedures; or
265          (d) employees of state institutions of higher education.
266          (2) (a) Whenever a question or dispute exists as to whether an employee is qualified to
267     use this grievance procedure, the administrator shall resolve the question or dispute.
268          (b) The administrator's decision under Subsection (2)(a) is reviewable only by the
269     Court of Appeals.
270          (3) Any career service employee may submit a grievance based upon a claim or charge
271     of injustice or oppression, including dismissal from employment, resulting from an act,
272     occurrence, omission, or condition for solution through the grievance procedures set forth in
273     this chapter.
274          (4) A reporting employee who desires to bring an administrative claim of retaliatory
275     action shall use the grievance procedure described in Section 67-19a-402.5.
276          (5) A career service employee who desires to bring a grievance shall use and follow the
277     grievance procedure described in Part 3, Grievance Procedures, and Part 4, Procedural Steps to
278     Be Followed by Aggrieved Employee.
279          Section 6. Section 67-19a-302 is repealed and reenacted to read:
280          67-19a-302. Levels of procedure.
281          (1) The administration of all grievances and complaints under this chapter occurs on
282     the following four levels:
283          (a) Level 1 - the supervisor;
284          (b) Level 2 - the division director or the director's designee;
285          (c) Level 3 - the agency director or the director's designee; and
286          (d) Level 4 - the office.
287          (2) (a) Except as provided in Subsection (2)(b), an employee shall file a grievance or
288     complaint at Level 1 and proceed through the levels of procedure within the applicable time
289     limits provided in this chapter.
290          (b) If a supervisor or division director is the subject of a grievance or complaint, the
291     employee may proceed directly to Level 2 or Level 3, respectively.
292          (3) A career service employee may advance all grievances to Level 3.
293          (4) In accordance with Section 67-19a-402.5 and subject to Section 67-21-4, a
294     reporting employee may file a grievance alleging retaliatory action directly at Level 4.
295          (5) (a) All matters described in Section 67-19a-202 are subject to an administrative
296     appeal to the office.
297          (b) In an administrative appeal of a grievance filed under Subsection
298     67-19a-202(1)(a)(ix), the administrator shall conduct an administrative review of the
299     department's abusive conduct files and records in accordance with this Subsection (5).
300          (c) The department shall make the abusive conduct investigative file available for the
301     administrator's review.
302          (d) The administrator may request additional relevant documents and interview the
303     investigator who conducted the investigation.
304          (e) The administrator shall substantiate the investigative findings and conclusions if,
305     based on a review of the file, the findings and conclusions are reasonable and rational.
306          (f) If the investigative findings and conclusions are not reasonable and rational, the
307     administrator may overturn the findings and remand the investigation to the department for
308     further review, with instructions.
309          (g) To preserve privacy of employees and participants in the investigation, the
310     investigative findings and the decision upon administrative review may be kept confidential.
311          (h) (i) Whether an administrative appeal of an abusive conduct grievance is subject to
312     an evidentiary hearing is at the discretion of the administrator and based upon the
313     administrator's findings.
314          (ii) The administrator's decision described in Subsection (5)(h)(i) regarding the
315     investigative file is final and may not be appealed.
316          Section 7. Section 67-19a-303 is amended to read:
317          67-19a-303. Employees' rights in grievance procedure.
318          (1) For the purpose of submitting and advancing a grievance, a career service
319     employee, or a reporting employee alleging retaliatory action, may:
320          (a) obtain assistance by a representative of the employee's choice to act as an advocate
321     at any level of the grievance procedure;
322          (b) request a reasonable amount of time during work hours to confer with the
323     representative and prepare the grievance; and
324          (c) call other employees as witnesses at a grievance hearing.
325          (2) The state shall allow employees to attend and testify at the grievance hearing as
326     witnesses if the employee has given reasonable advance notice to the employee's immediate
327     supervisor.
328          (3) No person may take any reprisals against a career service employee or a reporting
329     employee for:
330          (a) use of or participation in a grievance procedure described in this chapter[.]; or
331          (b) representing and providing assistance to a career service employee as an advocate
332     in accordance with Subsection (1)(a).
333          (4) (a) The employing agency of an employee who files a grievance may not place
334     grievance forms, grievance materials, correspondence about the grievance, agency and
335     department replies to the grievance, or other documents relating to the grievance in the
336     employee's personnel file.
337          (b) The employing agency of an employee who files a grievance may place records of
338     disciplinary action in the employee's personnel file.
339          (c) If any disciplinary action against an employee is rescinded through the grievance
340     procedures described in this chapter, the agency and the Department of Human Resource
341     Management shall remove the record of the disciplinary action from the employee's agency
342     personnel file and central personnel file.
343          (d) An agency may maintain a separate grievance file relating to an employee's
344     grievance, but shall discard the file after three years.
345          Section 8. Section 67-19a-401 is amended to read:
346          67-19a-401. Time limits for submission and advancement of grievance by
347     aggrieved employee -- Voluntary termination of employment -- Group grievances.
348          (1) [Subject to the provisions of Part 3, Grievance Procedures, and the restrictions
349     contained in this part,] When a career service employee [may have] files a grievance [addressed
350     by following the procedures] at Level 1, as described in Section 67-19a-302, the employee
351     shall advance the grievance through the proper levels of procedure specified in this [part]
352     chapter.
353          [(2) The employee and the person to whom the grievance is directed may agree in
354     writing to waive or extend grievance steps specified under Subsection 67-19a-402(1), (2), or
355     (3) or the time limits specified for those grievance steps, as outlined in Section 67-19a-402.]
356          [(3) Any writing made under Subsection (2) shall be submitted to the administrator.]
357          [(4)] (2) Except as provided under [Subsection (6)] Subsections (7) and (8), if the
358     employee fails to advance the grievance to the next procedural step within the time limits
359     established in this part:
360          (a) the employee [waives] may have waived the right to advance the grievance or to
361     obtain judicial review of the grievance; and
362          (b) the grievance [is] may be considered to be settled based on the decision made at the
363     last procedural step unless otherwise excused by what may constitute harmless error, excusable
364     neglect, or other fair and equitable considerations.
365          [(5) (a) An] (3) An employee may [submit] file a grievance for review under this
366     chapter [only if the employee submits], if the employee, in general, submits the grievance
367     within 30 working days after:
368          [(i) within 20 working days after] (a) the event giving rise to the grievance or, if a
369     pattern, practice, or ongoing course of conduct or work environment gives rise to the grievance,
370     the most recent event within the pattern, practice, course of conduct, or work environment; or
371          [(ii) within 20 working days after] (b) the employee has actual or effective knowledge
372     of:
373          (i) the event giving rise to the grievance[.] or, if a pattern, practice, ongoing course of
374     conduct, or work environment gives rise to the grievance, the most recent event within the
375     pattern, practice, course of conduct, or work environment; and
376          (ii) the procedures and entitlements provided in this chapter.
377          [(b) Notwithstanding Subsection (5)(a), an employee may not submit a grievance more
378     than one year after the event giving rise to the grievance.]
379          (4) The employer shall, at all times, meet and satisfy the standard and policy of
380     maintaining a work environment free of abusive conduct or other wrongful employment
381     practices as provided in Section 67-19a-202.
382          (5) In determining whether an employee timely files a grievance, consideration shall be
383     given to whether the employee reasonably delayed the filing of a grievance and sought to
384     overcome or endure otherwise intolerable working conditions.
385          (6) The time limits for submission and advancement of a grievance do not apply if the
386     employee meets the requirements for excusable neglect or other equitable considerations as
387     determined by the administrator.
388          [(6)] (7) The provisions of Subsections [(4) and (5)(a)] (2) and (3) do not apply if the
389     employee meets the requirements for excusable neglect established by rule.
390          [(7)] (8) (a) [A] Except in the case of constructive discharge, as provided in Subsection
391     (8)(b), a person who has voluntarily terminated the person's employment with the state may not
392     submit a grievance after the person has terminated the employment.
393          (b) Notwithstanding the filing requirements of this section, in the case of constructive
394     discharge, the former employee:
395          (i) may, within 30 days, submit a grievance after the constructive discharge; and
396          (ii) retains a right to the entitlements and procedures in this chapter.
397          [(8)] (9) (a) If several employees allege the same grievance, the employees may submit
398     a group grievance by following the procedures and requirements of this chapter.
399          (b) In submitting a group grievance, each aggrieved employee shall sign the grievance.
400          (c) The administrator may not treat a group grievance as a class action, but may select
401     one aggrieved employee's grievance and address that grievance as a test case.
402          Section 9. Section 67-19a-402 is amended to read:
403          67-19a-402. Procedural steps to be followed by aggrieved employee.
404          (1) (a) [A] Subject to the provisions and levels of procedure provided in Section
405     67-19a-302, a career service employee who has a grievance shall submit the grievance in
406     writing to:
407          (i) the employee's supervisor; and
408          (ii) the administrator.
409          (b) Within five working days after receiving a written grievance, the employee's
410     supervisor may issue a written decision on the grievance.
411          (2) (a) If the employee's supervisor fails to respond to the grievance within five
412     working days or if the aggrieved employee is dissatisfied with the supervisor's written decision,
413     the employee may advance the written grievance to the employee's agency or division director
414     within 10 working days after the expiration of the period for response or receipt of the written
415     decision, whichever is first.
416          (b) If a career service employee has a grievance that applies to the conduct or behavior
417     of the employee's supervisor or conditions that the employee's supervisor creates or allows, the
418     employee may submit the grievance in writing at Level 2, as described in Section 67-19a-302.
419          [(b)] (c) Within five working days after receiving the written grievance, the employee's
420     agency or division director may issue a written response to the grievance stating the decision
421     and the reasons for the decision.
422          (3) (a) If the employee's agency or division director fails to respond to the grievance
423     within five working days after its submission, or if the aggrieved employee is dissatisfied with
424     the agency or division director's written decision, the employee may advance the written
425     grievance to the employee's department head within 10 working days after the expiration of the
426     period for decision or receipt of the written decision, whichever is first.
427          (b) If a career service employee has a grievance that applies to the conduct or behavior
428     of the employee's agency or division director or conditions that the employee's agency or
429     division director creates or allows, the employee shall submit the grievance in writing at Level
430     3, as described in Section 67-19a-302.
431          [(b)] (c) Within 10 working days after the employee's written grievance is submitted,
432     the department head may issue a written response to the grievance stating the decision and the
433     reasons for the decision.
434          [(c)] (d) The decision of the department head is final in all matters except those matters
435     that the office may review under the authority of Part 3, Grievance Procedures.
436          (4) If the written grievance submitted to the employee's department head meets the
437     subject matter requirements of Section 67-19a-202 and if the employee's department head fails
438     to respond to the grievance within 10 working days after submission, or if the aggrieved
439     employee is dissatisfied with the department head's written decision, the employee may
440     advance the written grievance to the administrator within 10 working days after the expiration
441     of the period for decision or receipt of the written decision, whichever is first.
442          (5) The department head shall administer and issue a final response to the grievance
443     stating the decision and the reasons for the decision within six months after the day on which
444     the employee files and submits the grievance and subject to an extension of not more than 60
445     days if reasonably necessary and requested by the department head.
446          Section 10. Section 67-19a-402.5 is amended to read:
447          67-19a-402.5. Procedural steps to be followed by reporting employee alleging
448     retaliatory action.
449          (1) A reporting employee who desires to assert an administrative grievance of
450     retaliatory action:
451          (a) shall submit the grievance in writing within [20] 30 days after the day on which the
452     retaliatory action occurs;
453          (b) is not required to comply with Section 63G-7-402 to file the grievance; and
454          (c) is subject to the provisions of Section 67-21-4.
455          (2) (a) When a reporting employee files a grievance with the administrator under
456     Subsection (1), the administrator shall initially determine:
457          (i) whether the reporting employee is entitled, under this chapter and Chapter 21, Utah
458     Protection of Public Employees Act, to bring the grievance and use the grievance procedure;
459          (ii) whether the office has authority to review the grievance;
460          (iii) whether, if the alleged grievance were found to be true, the reporting employee
461     would be entitled to relief under Subsection 67-21-3.5(2); and
462          (iv) whether the reporting employee has been directly harmed.
463          (b) To make the determinations described in Subsection (2)(a), the administrator may:
464          (i) hold an initial hearing, where the parties may present oral arguments, written
465     arguments, or both; or
466          (ii) conduct an administrative review of the grievance.
467          (3) (a) If the administrator holds an initial hearing, the administrator shall issue a
468     written decision within 15 days after the day on which the hearing is adjourned.
469          (b) If the administrator chooses to conduct an administrative review of the grievance,
470     the administrator shall issue the written decision within 15 days after the day on which the
471     administrator receives the grievance.
472          (4) (a) If the administrator determines the office has authority to review the grievance,
473     the administrator shall provide for an evidentiary hearing in accordance with Section
474     67-19a-404.
475          (b) The administrator may dismiss the grievance, without holding a hearing or taking
476     evidence, if the administrator:
477          (i) finds that, even if the alleged grievance were found to be true, the reporting
478     employee would not be entitled to relief under Subsection 67-21-3.5(2); and
479          (ii) provides the administrator's findings, in writing, to the reporting employee.
480          (c) The office shall comply with Chapter 21, Utah Protection of Public Employees Act,
481     in taking action under this section.
482          (5) A decision reached by the office in reviewing a retaliatory action grievance from a
483     reporting employee may be appealed directly to the Utah Court of Appeals.
484          (6) (a) Except as provided in Subsection (6)(b), an appellate court may award costs and
485     attorney fees, accrued at the appellate court level, to a prevailing employee.
486          (b) A court may not order the office to pay costs or attorney fees under this section.
487          Section 11. Section 67-19a-406 is amended to read:
488          67-19a-406. Procedural steps to be followed by aggrieved employee -- Hearing
489     before hearing officer -- Evidentiary and procedural rules.
490          (1) (a) The administrator shall employ a certified court reporter to record the hearing
491     and prepare an official transcript of the hearing.
492          (b) The official transcript of the proceedings and all exhibits, briefs, motions, and
493     pleadings received by the hearing officer are the official record of the proceeding.
494          (2) (a) The agency has the burden of proof in all grievances.
495          (b) The agency must prove the agency's case by substantial evidence.
496          (3) (a) The hearing officer shall issue a written decision within 20 working days after
497     the hearing is adjourned.
498          (b) If the hearing officer does not issue a decision within 20 working days, the agency
499     that is a party to the grievance is not liable for any claimed back wages or benefits after the date
500     the decision is due.
501          (4) The hearing officer may:
502          (a) not award attorney fees or costs to either party;
503          (b) close a hearing by complying with the procedures and requirements of Title 52,
504     Chapter 4, Open and Public Meetings Act;
505          (c) seal the file and the evidence produced at the hearing if the evidence raises
506     questions about an employee's character, professional competence, or physical or mental
507     health;
508          (d) grant continuances according to rule; and
509          (e) decide a motion, an issue regarding discovery, or another issue in accordance with
510     this chapter.
511          (5) (a) A hearing officer shall affirm, rescind, or modify agency action.
512          (b) (i) If a hearing officer does not affirm agency action, the hearing officer shall order
513     back pay and back benefits that the grievant would have received without the agency action.
514          (ii) An order under Subsection (5)(b)(i) shall include:
515          (A) reimbursement to the grievant for premiums that the grievant paid for benefits
516     allowed under the Consolidated Omnibus Reconciliation Act of 1985; and
517          (B) an offset for any state paid benefits the grievant receives because of the agency
518     action, including unemployment compensation benefits.
519          (c) In an order under Subsection (5)(b)(i), a hearing officer may not reduce the amount
520     of back pay and benefits awarded a grievant because of income that the grievant earns during
521     the grievance process.
522          (6) An employee who files a grievance in accordance with this chapter may appeal a
523     decision of the administrator in reviewing a grievance under this section directly to the Utah
524     Court of Appeals within 15 days after the day on which the employee receives notice and the
525     decision of the administrator.
526          Section 12. Section 67-21-3.5 is amended to read:
527          67-21-3.5. Administrative review of adverse action against a public entity
528     employee.
529          (1) A public entity employee who believes that the employee's employer has taken
530     retaliatory action against the employee in violation of this chapter may file a grievance with the
531     Career Service Review Office in accordance with Section 67-19a-402.5 and subject to Section
532     67-21-4.
533          (2) If the Career Service Review Office determines that retaliatory action is taken in
534     violation of this chapter against the public entity employee, the Career Service Review Office
535     may order:
536          (a) reinstatement of the public entity employee at the same level held by the public
537     entity employee before the retaliatory action;
538          (b) the payment of back wages, in accordance with Subsection 67-19a-406(5)(b);
539          (c) full reinstatement of benefits;
540          (d) full reinstatement of other employment rights; or
541          (e) if the retaliatory action includes failure to promote, as described in Subsection
542     67-19a-101[(8)](12)(d), a pay raise that results in the employee receiving the pay that the
543     employee would have received if the person had been promoted.
544          (3) A public entity employer has the burden to prove by substantial evidence that the
545     public entity employer's action was justified.
546          (4) A public entity employee or public entity employer may appeal a determination of
547     the Career Service Review Office as provided in Section 67-19a-402.5.




Legislative Review Note
Office of Legislative Research and General Counsel